MUNYIMI v TAURO 2013 (2) ZLR 291 (S)

Flynote

c Practice and procedure — rescission — judgment granted in error — nature of error justifying setting aside of judgment — evidence — when court confined to error appearing on record — when other evidence may be considered

Headnote

It is a general principle of our law that once a final order is made, correctly reflecting the true intention of the court, that order cannot be altered by that court. Rule 449 of the High Court Rules 1971 is an exception to that principle and allows a court to revisit a decision it has previously made but only in a restricted sense. Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of the proceedings in deciding whether a judgment was erroneously granted. The specific reference in r 449 to a judgment or order granted "in the absence of any party affected thereby" envisages a situation where such a party may be able to place facts before the latter court, which facts would not have been before the court that granted the order in the first place. Once a court holds that a judgment or order was erroneouslygranted in the absence of a party affected, it may correct, rescind or vary such judgment or order without further inquiry. There is no requirement that an applicant seeking relief under r 449 must show "good cause".

A distinction should be drawn between a case where a court mero motu decides to rescind or vary an order and one where such an order is sought on the basis of an application. In the former case, or where an oral application is made from the bar, the error should appear on the record. In the latter, where a written application is made by a party whose rights are affected by an order granted in its absence, the court would have before it not only the record of the proceedings but also facts set out in the affidavits filed of record. Such facts cannot simply be ignored and it is not irregular to adopt such a procedure in seeking rescission.

In fact, it might be necessary to do so in cases where no error could be picked up ex facie the record itself.

As to what constitutes an "error", such an error would exist where the judge was unaware of facts which, if he had been aware of them, would have made it highly unlikely that he would have found it permissible or competent to make an order against a party. Examples include (a) a default judgment being granted against an applicant who had filed an appearance to defend in court but which appearance had not been brought to the attention of the judge; and (b) a false return of service being filed by the Deputy Sheriff indicating that service had been effected personally, when in fact no such service had been effected.